Opinion
1170 KA 16–01987
11-09-2018
The PEOPLE of the State of New York, Respondent, v. Adrian FAVORS, III, also known as "Ace," Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the first degree ( Penal Law § 140.30[3] ). We agree with defendant that, as the People correctly concede, defendant did not waive his right to appeal inasmuch as that condition was part of a prior plea agreement that was withdrawn before the instant plea was entered (see People v. Shay, 130 A.D.3d 1499, 1499, 12 N.Y.S.3d 926 [4th Dept. 2015] ; People v. Graham, 187 A.D.2d 389, 389–390, 590 N.Y.S.2d 715 [1st Dept. 1992], lv denied 81 N.Y.2d 840, 595 N.Y.S.2d 739, 611 N.E.2d 778 [1993] ). We nonetheless decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender (see People v. Sakinovic, 149 A.D.3d 1596, 1596, 51 N.Y.S.3d 471 [4th Dept. 2017] ). Finally, the sentence is not unduly harsh or severe.